Rules applicable to society and enforced by court

Jurisprudence Assignment One

No.1 a) Criminal Law because Mwangi had violated the laws by stealing.
b) Mwangi is the accused in this action.
c) Simiyu would be called the Plaintiff, and the action is based on Civil Law.
No.2 I) Law of contract- It is a civil law branch that deals with legal agreements and promises of a contract and ensures legal consequences in the agreement, and also determines the essentials of a valid contract.
II) Law of tort- This is a civil wrong that causes loss or harm to someone or property and may include battery, assault, and damaging physical properties.
III) Law of trust- This civil Law sees a relationship where one transfers their rights to another person to keep it solely for another’s benefit.
IV) Law of succession- defines the rules that determine the division of one’s wealth after death.
No.3
Legal rights Equitable rights
They are rules accepted and protected by Law to protect its people.

They are enforceable by a court of Law.
This is the right to equitable shares.

They are originally enforceable.

No.4 Law is a dynamic aggregate of a set of rules applicable to society and enforced by a court of Law.
No.5
I) An unwritten constitution is easy to amend and flexible in that it can be easily changed to adapt to a society’s changes compared to a written constitution, which requires a long process.
II) An unwritten Constitution is easy to adapt since the community grows with it in their minds.
III) It does not require the long process of taking legal action in Court as the written Constitution, which is interpreted by the judiciary through a long legal process.
IV) An unwritten constitution allows easy and fast decision-making when urgently needed.
No.6 Supremacy of the Constitution implies that the Constitution binds everyone, including all the institutions and state organs of the government, at any level on the land and must therefore be respected. According to Pharaoh (2022), everyone, including those who govern, has an obligation under the Constitution to defend, uphold and respect the Constitution, and one can be sued if they fail to uphold its supremacy.
Different types of Constitution
• Written Constitution- All the fundamental principles and the laws of the land are written in a formal document, e.g., the Kenyan Constitution.
• Unwritten Constitution- Most fundamental rules are not written in a formal document, e.g., The British Constitution.
No. 8 The Supreme Court
It was established under article 163 of the Constitution, which states that there shall be the establishment of the Constitution which will consist of; The chief justice, deputy chief justice, and five other judges.
It hears presidential election petitions, which are under article 140 of the Constitution, and also hears appeals from the Court of appeal and other tribunals.
Appeals shall be brought to the Supreme Court from the Court of appeal in case;.’
a) As of right, in any case involving the interpretation or application of this Constitution
b) In any other case, the Supreme Court, or the Court of Appeal, certifies that a matter of general public importance is involved.
c) The Supreme Court may give an advisory opinion at the request of the national government, any State organ, or any county government concerning any matter concerning county government.
d) The decisions of the Supreme Court bind all Courts other than the Supreme Court.
The Court of Appeal
It was established under article 164 (1) (a) of the Kenyan Constitution, which states that there shall be a court of appeal will consist of a number of judges, not fewer than twelve. The Court of appeal shall receive appeals from the High Court, any other court, or tribunals as prescribed by an act of parliament.
The Civil Procedure Act provides that in civil cases, an appeal can be made to the Court of Appeal on the following grounds.
• • The decision contrary to Law, or some usage, is having the force of Law.
• • The decision has failed to determine some material issues of Law or having the force of Law.
• • A substantive error or defect in the procedure provided by this Act or by other Law for the time being in power, which may have produced an error of weakness in the decision of the case upon the merits.
The High Court
It was established under article 165 of the Kenyan Constitution, which states that the High Court shall be organized and prescribed by an act of parliament. It consists of a principal judge elected by the high court judges (Article 165 (2)).
Jurisdiction
• The High Court has unlimited original jurisdiction in criminal and civil matters.
• The High Court helps solve questions arising from the subordinate courts and involves a substantial question of the Law.
• Has jurisdiction to supervise any civil or criminal proceeding at any magistrate court o court martial.
• It has the jurisdiction to determine whether a civil right or fundamental freedom in the bill of rights has been denied, violated, infringed, or threatened.
• Has the jurisdiction to hear parliamentary election petitions to determine whether an MP was validly elected.
• Exercises jurisdiction on matters affecting marriages.
Resident’s magistrate court.
Established under section 3(1) of the magistrate court act, which states that there will be the establishment of the Resident’s magistrate court which shall be a subordinate court to the High Court. It shall be held by the Chief Magistrate, a Senior Principal Magistrate, a Principal Magistrate, a Senior Resident Magistrate, or a Resident Magistrate.
Jurisdiction
The Resident’s magistrate court has the mandate to adjudicate felonies and award penalties such as death, imprisonment, detention, fine, forfeiture, payment of compensation, and any other punishment according to section 24 of the penal code.
Kadhi’s Court
Kadhi’s Court is established by the Statute Law Act 1986, which states that “in pursuance of Article170 of the Constitution there shall be established a number of Kadhi’s Courts as the Chief Justice may, in consultation with the Chief Kadhi. The Chief Kadhi or the Kadhi precedes the court proceedings.
Jurisdiction
• Has the jurisdiction to solve the question of Muslim laws relating to Personal status, Marriage, • Divorce, or Inheritance in proceedings in which all the parties profess the Muslim religion.

Reference
Church, K. (2022). The Need to Safeguard the Rule of Law and Improve Access to Justice in Kenya. Available at SSRN 4148629.